Reacting to a new world reality

By Josh Blackman, and Lisa McElroy

Updated 10:09 am, Wednesday, May 8, 2013

The most powerful surveillance network in Boston helped to apprehend the Boston Marathon bombers. This unblinking and omniscient eye was not operated by the state, however; instead, private security cameras, in conjunction with a citizen army equipped with iPhones and Androids, were able to record the mayhem wrought in Copley Square. These shared recordings, which could be obtained without any concerns for the judicial process or the Fourth Amendment, aided the police in identifying, cornering and catching the brothers Tsarnaev.

Within seconds of the explosion at the finish line, eyewitnesses used social media to share photographs of the scene and even videos of the blast. Minutes later, a cyber-militia crowdsourced images. Even so, while the police welcomed the help of these cyber sleuths and the wisdom of the crowds in gathering evidence, they opposed real-time reporting of the manhunt on Twitter.

During the bloody confrontation in Watertown, bloggers listening to police scanners began to tweet, in real-time, the play-by-play of the shootout. In response, the Boston Police Department tweeted, "#MediaAlert: WARNING: Do Not Compromise Officer Safety by Broadcasting Tactical Positions of Homes Being Searched." These "requests" echoed those by police in another recent standoff; during the final confrontation with fugitive ex-cop Christopher Dorner, the Sheriff's Department tweeted, "The sheriff has asked all members of the press to stop tweeting immediately. It is hindering officer safety. #Dorner."

The police in both situations were reacting to a new world reality; the fact that manhunts are now virtual and that citizens can play at that game forced the police to change time-honored tactics of secret surveillance and communication. And, at least in Boston, they had to change their game quickly.

Citizen participation would seem to be a good thing, and the media has a journalistic duty to publicize all aspects of the conflict in the interests of informing the public. In the case of the Boston Marathon, real-time social media reports kept the public informed and potentially out of harm's way, but they put the police at risk.

Here, the requests to stop tweeting were voluntary. It is not hard to imagine a situation, however, where the government could order the press - old and new -to stop reporting. The risk to the rule of law? Orders of prior restraint - telling the press not to report on matters of public concern - are unconstitutional limitations on speech. In 1971, the U.S. Supreme Court held that the United States could not stop the New York Times from publishing the Pentagon Papers, which contained classified information about war strategy in Vietnam. To do so would violate the First Amendment. In part, the court held that there was no imminent harm from publishing the article.

Yet, tools like Twitter that enable the real-time updates of information from anyone with an Internet connection democratize the press unlike anything in the past. In the past, the only media that could offer live broadcasts of breaking news were television and radio stations, which could be quietly asked by the police to stop reporting. Today, with every tweeter and redditor following police scanners, the diffusion of breaking news - even news that could harm the police - has never been easier.

Arguably here, the imminence of harm to the police was a compelling interest that could give the state the power to stifle the tweets. However, the police should not be so glib in requesting that social media channels shut down. Look no further than the use of Twitter during the Arab Spring. Indeed, efforts by Egypt and other nations to stifle this mode of virtual assembly should serve as a lesson to the value of this technology - and the risk of shutting it down.

With the democratization and twitterization of the Boston Marathon investigation, the future of the national security state is here - for better, and worse.

Blackman is an assistant professor of law at South Texas Law School. McElroy is an associate professor of law at the Drexel University Earle Mack School of Law.